NAND KISHORE KAPOOR Vs. SHANTI KAPOOR

JUDGEMENT

(1.) This revision is directed against an order dated the 5th Dec., 1980 of the Court of First Additional District Judge, Allahabad holding that the Court had jurisdiction to proceed with the trial of the petition for restitution of conjugal rights that had been made by the opposite party wife. This order was passed on an application dated the 24th July, 1980 which is paper No. 23-C made by the applicant husband and the objection thereto dated the 31st July 1980 which is paper No. 25-C on the lower Court record. The prayer made in the application 23-C was for dismissal of the suit filed by the wife and the registration of the counterclaim filed by the husband as an original suit. The counter-claim was, however sought to be withdrawn by two subsequent applications 31-C and 38-C, which was allowed by a subsequent order dated the 11th Feb., 1981 of the Court of the First Additional District Judge, though without permission to file a fresh suit on the same cause of action.

(2.) The opposite party wife filed the petition for restitution of conjugal rights In the District Court, Allahabad on the 13th Dec., 1979. A written statement was filed on the 26th Feb. 1980, by the applicant husband making all kinds of allegations against the opposite party wife and even seeking a decree of divorce by way of a counter-claim. The opposite party wife had also moved an application under Section 24 of the Hindu Marriage Act to which a reply was filed by the applicant husband on the 27th March, 1980. The ground, on which the application 23-C dated the 24th July, 1980 was made, was that the applicant husband had filed a Suit No. 51-A of 1979 in the Court of the District Judge, Hoshangabad, Madhya Pradesh, for restitution of conjugal rights under Section 9 of the Hindu Marriage Act; that the suit was decreed with costs on the 14th January, 1980; that the opposite party wife had full knowledge of the decree; and that the dispute between the parties having been decided by the Hoshangabad Court, the District Court at Allahabad had no jurisdiction to proceed with the trial of the wife's petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. It was said that a certified copy of the judgment of the Hoshangabad Court had been filed in the Court of the Special Judicial Magistrate Allahabad. It was further said that the applicant husband got information of the passing of the decree in the said suit by the Hoshangabad Court when he went to his home at Itarsi on or about 19th May, 1980 and brought the certified copy from there and gave it to his counsel at Allahabad. Certified copies of the judgment and decree of the Hoshangabad Court were, however, filed on the 20th Sept., 1980 in the Court of the First Additional District Judge, Allahabad. The judgment of the Hoshangagad Court shows that the decree for restitution of conjugal rights was passed ex parte against the opposite party wife on the basis of the evidence of the applicant husband's brother, Having been registered as Suit No. 51-A of 1979 and having been decided on the 14th Jan., 1980, the suit before the Hoshangabad Court appears to have been earlier in fact as well as in law, than the suit initiated in the District Court, Allahabad by the opposite party wife's petition under Section 9 of the Hindu Marriage Act on the 13th Dec., 1979. The decree of the Hoshangabad Court stands. It was produced before the learned First Additional District Judge. It was not suggested that the District Court, Hoshangabad was not a Court competent to pass that decree. It was passed in the exercise of the matrimonial jurisdiction of that Court. It was relevant under Section 41 of the Indian Evidence Act and is good and binding until set aside. It was not suggested that it was obtained by fraud or collusion.

(3.) On inquiry made by me from the learned counsel for the opposite party wife during the course of the hearing of the revision, I was informed that no steps whatsoever were taken by the opposite party wife to have the judgment and decree of the Hoshangabad Court, which was passed ex parte against her, set aside on the ground that the summons of that suit had not been served on her or that she was prevented by any sufficient cause from appearing at the hearing of that suit before the Hoshangabad Court.